Incumbent public safety channel frequency coordinators have asked the FCC to reject the latest request by a for-profit entity to be certified a frequency coordinator. However, other entities support certification. In comments filed in WP docket 14-235, the incumbent coordinators argued that Engineers Frequency Advisory Committee LLC (EFAC) does not meet the requirement that it be representative of spectrum users that it will serve, as well as that EFAC is a for-profit entity that could favor its clients over non-clients in coordination decisions.
EFAC is seeking certification as a part 90 frequency coordinator, arguing that the newly formed entity is well-suited to handle frequency coordination for entities that require a high level of engineering services (TRDaily, Dec. 2, 2014). EFAC members are Tusa Consulting Services, Blue Wing Services, and the law firm of Shulman Rogers Gandal Pordy & Ecker P.A.
“Representativeness of users continues to be an essential requirement for frequency coordination, as it ensures the fairness and effectiveness of the process for both applicants and incumbent licensees,” said the Association of Public-Safety Communications Officials-International, which is the largest frequency coordinator for public safety pool channels. “Associations representing users necessarily balance not only the needs of an applicant, but also the potential for interference to existing operations. This is especially important in the Public Safety Pool where interference could disrupt emergency communications of first responders and other public safety personnel. In contrast, a non-representative coordinator (especially if it is a for-profit entity) will be primarily interested in assigning channels to its paying clients/applicants. It will have no obligation, fiduciary or otherwise, to protect incumbents. Representative coordinators are also well-suited to resolve disputes among licensees and applicants (who, in most cases, will be its members), without the need for Commission intervention. Finally, representative coordinators have a unique understanding of the particular operational needs and concerns of their constituents.”
“Despite the critical importance of the representativeness requirement, EFAC’s sole argument in that regard is that the three professional firms that constitute EFAC count public safety agencies among their paying clients. That hardly unique claim fails to meet the Commission’s requirements,” APCO added. “Just because an engineering consultant or attorney ‘represents’ public safety entities in particular licensing or legal proceedings does not make that firm ‘representative’ of public safety users as a class. The Commission’s long standing policy, discussed above, is obviously using the term ‘representative’ to mean ‘having or showing the qualities associated with the members of a particular group or kind,’ which does not typically apply to attorneys, engineers and other professionals that may be retained by members of such a group.”
APCO added, “Should the Commission ignore these failings of the EFAC request, the door would be left wide open for dozens of similar certification requests from consultants, engineers and attorneys who claim to ‘represent’ public safety based on nothing more than their client base. How would the Commission make meaningful subjective choices regarding certification of such entities? Simply eliminating the representativeness criteria or certification requirements in general would be an even worse result, as it would create chaos in frequency coordination with no effective means to ensure that frequency assignments will not interfere with critical communications that protect the safety of life and property. Perhaps such a ‘Wild West’ approach could work in the Industrial/Business Pool, but certainly not in the Public Safety Pool where the consequences of inadequate frequency coordination could endanger first responders and the public they serve.”
In joint comments, the International Municipal Signal Association, the International Association of Fire Chiefs, and the Forestry Conservation Communications Association, which are part 90 frequency coordinators, said that “EPAC fails to satisfy the criteria outlined by the FCC to be certified as a frequency coordinator,” including that it is representative of spectrum users it will serve.
The groups added that “EFAC confuses experience with representativeness and attempts to mask its lack of representativeness by asserting that many entities ‘have signed retainer letters with Shulman Rogers for the Firm to represent these licensees and entities before the Commission and other Frequency Advisory Committees.’ It concludes that ‘[t]his work represents the definition of “representative” in its purest capacity.’ EFAC’s assertion is little more than a clumsy attempt at wordplay. Shulman Rogers and other EFAC members may ‘represent’ clients. However, that does not mean that Shulman Rogers or any of the EFAC members are representative of the community that they seek to coordinate in the way that the FCC intended.” The organizations added that EFAC’s for-profit status is also problematic.
The National Public Safety Telecommunications Council, a federation that includes representation of APCO and other frequency coordinators, also opposed the EFAC request. “EFAC is the latest of several companies that have requested Commission certification as a Part 90 frequency coordinator,” NPSTC noted. “Previous requests under Commission consideration to be certified as a Part 90 frequency coordinator by other companies include those of ACD Telecom, LLC (ACD) and National Frequency Coordination, LLC. … In NPSTC’s view, none of these three companies meet[s] the Commission’s qualifications to be certified as a Part 90 frequency coordinator.”
NPSTC said it agreed with Land Mobile Communications Council guidance on the importance of frequency coordinators being representative of applicants and licensees and being impartial. “NPSTC is particularly concerned how a company such as EFAC, ACD or NFC will be able to provide fair and equitable coordination to all parties,” it added. “For example, what happens when a party requests coordination for a frequency also desired by a client of EFAC’s principals, a client of ACD or a subsidiary/principal of NFC? NPSTC is concerned how these three companies, or any similarly situated company which may request Part 90 frequency coordination in the future, can truly be representative of the user base they coordinate and provide fair and non-discriminatory frequency coordination services.”
EFAC “has neither the independence nor impartiality required of a frequency coordinator, nor does it represent an identifiable interest among land mobile communications users. Its request is inconsistent with the Commission’s precepts addressing the nondiscriminatory character of frequency coordination and should be denied and dismissed,” said the American Association of State Highway and Transportation Officials, which coordinates highway maintenance frequencies in the public safety pool.
But others supported EFAC’s frequency coordination certification request, saying it is qualified to do the work and that competition in the sector would be helpful. “The nature of Engineers Frequency Advisory Committee, LLC’s request to be certified as a Part 90 Frequency Coordinator serves to further introduce the advantages of an open competitive process in response to local, regional or nationwide frequency coordination requests, as well as providing a dedicated resource to the timely address of frequency coordination requests – all to the benefit of licensees nationwide,” said the Washington State Interoperability Executive Committee (SIEC) and the Washington State SIEC Advisory Workgroup . “Additionally, while not currently an issue within Region 43 (Washington), the availability of an independent third-party frequency coordinator would minimize the potential conflict of interest presented when regional representatives are involved with local frequency coordination requests wherein they have a personal or professional relationship with the requestor, while simultaneously addressing the Commission’s prior concerns regarding the ‘equality of applicant treatment.’”
The filing added, “Currently, volunteer resources are frequently used in the performance of frequency coordination reviews, and many are active or retired industry professionals. In many cases these volunteers are processing requests from regional and/or local licensees with whom they may have vested interests. Also, the time they have available to dedicate to a coordination request may be limited by other priorities. A final consideration is the use of frequency coordination tools that, due to the voluntary and infrequent nature of their involvement in the processing of requests, some may not have access to the most current information available and may not be utilizing current or updated tools in performing their coordination efforts.”
Forrest Farthing, manager-communications maintenance for the Bi-State Development Agency, a two-state authority that manages facilities such as the St. Louis Downtown Airport and the St. Louis Regional Transit Authority, praised his dealings with Shulman Rogers and cited errors he has seen incumbent coordinators make.
“EFAC surpasses the four primary criteria set forth by the Commission to qualify as a Private Land Mobile Radio frequency coordination entity,” Janus Spectrum LLC said. “1. EFAC has nationwide frequency coordination capability and has performed such functions for many public safety organizations and others, 2. EFAC operates in an unbiased manner in its coordina1ion planning, 3. EFAC has representativeness of the users of Part 90 frequencies to include counties and municipalities in Georgia, Florida and elsewhere and 4. EFAC has plenty of previous experience coordinating frequencies as evidenced by the hundreds of public safety entities and other entities which have successfully been awarded operating permits and modifications of existing permits.
“In summary, Janus Spectrum believes that the Commission, in the interest of fairness and in the interest of decreasing the number of application process bottlenecks, should hastily welcome and approve a well-qualified addition to the coordination community such as EFAC.”
“The FCC has never mandated that frequency coordinators be not-for-profit organizations,” said Dodge City Communications, Inc., which cited an error it said APCO made in a frequency coordination. “The FCC has never limited frequency coordinators to four. What the FCC has done is to mandate that organizations performing this task be competent as indicated in the four simple-to-understand requirements repeated in the immediately preceding paragraph.”
NetMoby, Inc., said it “strongly agrees with EFAC that it meets and exceeds the Commission’s four part standards for eligibility to become a Part 90 PLMR frequency coordinator. The organizing entities comprising EFAC are esteemed in the eyes of the public safety and commercial organizations they have previously represented because they just do outstanding work and there is nothing in the Commission record to suggest otherwise.” NetMoby said it disagreed with any “suggestion that APCO is somehow immune from financial motivation whereas any new entities coming into the frequency coordinator arena will not provide unbiased and non-discriminatory coordination services because they render remunerable services just as APCO did to the tune of $8,431,517.69 in 2013 alone out of which between $1,000,000 and $4,000,000 was borne from frequency coordination.” It added that the certification of an additional coordinator would result in faster processing of applications.
Racom Corp. said it “often contracts with Shulman, Rogers, Gandal, Pordy & Ecker, P.A. for assistance with the frequency coordination process. We require their assistance with complicated 700 and 800 MHz band applications and have the utmost confidence in their ability to walk us through the often complex and confusing process. Their knowledge of the licensing process and frequency coordination industry has proven valuable to RACOM on many occasions.” – Paul Kirby, paul.kirby@wolterskluwer.com
Courtesy TRDaily